testamentary disposition was meant in satisfaction of DowER. the husband's covenant or agreement (a).

Jointure,

With reference, then, to the above rule it follows, covenant, and that if the provisions by the settlement and the will satisfaction. be non ejusdem generis, the latter will not be a satis- Exceptions faction of the former.

to it.

Thus, in Broughton v. Errington (b), the husband As when covenanted to settle, within three months after the

the thing covenanted

to be done,

and the sub

or when the

latter is of a less amount

than the for

mer.

marriage, an annuity of £1000, to be issuing out of part of his real estates, upon his wife for life, if she sequent prowere the survivor, for her jointure. He afterwards vision are non ejusdem by his will devised to her absolutely, a leasehold generis, house, money in the funds, plate, linen, furniture, &c. He also bequeathed to her certain real estates which he had agreed to sell, also other monies which might be required to complete such purchase, all of which were to be so applied, and when the business was concluded, he directed the conveyance to be made to his wife's own use, and for her own absolute benefit. The testator died without having performed his covenant, leaving real estates of £8000 a year. The net rental of the real property devised to the widow was £550, and the only stock of which the testator died possessed was £2000 East India stock. The question was, whether the above devises were to be considered in satisfaction of the testator's covenant to settle upon his widow an annuity of £1000? The House of Lords decided in the nega tive, in affirmance of Lord Bathurst's decree; and upon this principle, as it would seem, that the testamentary provisions were not of equal annual value

(a) For instances of satisfaction, see" Law of Legacies," vol. ii. chapter 13. (b) 7 Bro. Parl. Ca. 461. 8vo. ed.

DOWER. with the annuity, and that the real estates, and the personal property bequeathed, were non ejusdem geJointure, covenant, and neris with the provision secured by the covenant, satisfaction. the former being lands and gross, sums, whilst the latter was an annuity.

The last case seems to be an authority to this extent, that if the provisions be non ejusdem generis, and the latter be of larger gross amount than the value of that agreed to be settled, or if the testamentary provision be inferior in annual value to what is covenanted to be settled upon the widow, such subsequent devises will neither be a total nor a partial satisfaction of the covenant or agreement. Of the same complexion with the last is the prior case of Eastwood v. Vinke (a).

There the husband gave a bond to a trustee with a condition, that if he at any time within four months settled freehold lands of the annual value of £100 upon his intended wife for life, or if his heirs, executors, &c. should within four months after his death pay to her £2000, the bond was to be void. The husband by his will devised freehold and copyhold lands to his wife and her heirs of the yearly value of £88, and died within four months after the marriage, without having settled upon her lands of the yearly value of £100. The question was, whether the devise of lands by the will was a satisfaction of the condition of the bond? The copyhold lands could not be so considered; and as to the freehold it was decided by the Master of the Rolls that they were not to be taken in satisfaction of it; and for these

(a) 2 P. Will. 614, confirmed on appeal to the Chancellor. See also Probert v. Morgan, 1 Atk. 440.

Dower.

Jointure,

reasons, as it would seem, viz. that if the bond were forfeited, then as the obligation became a debt, a devise of lands not being ejusdem generis, the latter covenant, and could not be a satisfaction of the former; on the satisfaction. other hand, if the agreement were to be considered to settle lands of the yearly value of £100, then those devised to the widow being of less annual amount than £100, could not for that reason be held to go in satisfaction of the engagement to settle lands of that full yearly value. The husband's executors, therefore, were ordered to pay the arrears of the £100 a year, and to settle that annual sum upon the widow, the Court declaring, that she was not intitled to the £2000; and that the lands devised should not be taken in part-satisfaction of the £100 agreed to be settled as before mentioned.

be settled

The reader will have observed, upon the perusal of the above authorities, that a Court of Equity will not presume an intention in the husband to satisfy his covenant or agreement for a jointure upon his wife by his testamentary disposition in her favour, unless the latter be in all respects equally beneficial to her, as her interest under such covenant or agree- Or when the ment. It is a consequence therefore, that if the jointure is to lands stipulated to be settled upon the wife in jointure be without impeachment of waste, and those bequeathed to her are without that privilege; or if the settlement is to be made to her in fee, and the devise is to her for life only, in these and such like instances the bequests will not be considered in satisfaction of her right under the covenant or agreement (a).

(a) See Alleyn v. Alleyn, 2 Ves, sen. 38.

sans waste,

and the lands

devised are

subject to waste.

Or when the

former is to

be in fee, and the lat

ter is for life only.

DOWER.

The same rules which apply to the performance and satisfaction of the husband's covenants to leave covenant, and or settle parts of his personal estate to or upon his satisfaction. wife, are equally applicable when the question

Jointure,

Instance of

apparent in

widow

should have both her

jointure and

vised to her.

arises upon the performance or satisfaction of his covenant to settle real estates upon her. For further particulars, therefore, on this subject, the reader is referred to the subsequent part of the treatise, where the interest of the widow in her husband's personal estate is considered; and I shall conclude this section with an instance where it appeared upon the fair construction of the husband's will, that he actually intended his widow to have, not only the provision made by their marriage articles, but also the testamentary provision which he had given to her.

Thus, in Prime v. Stebbing (a), the husband covetention that nanted in marriage articles, that the lands settled upon his wife were of the yearly value of £1600 above all incumbrances. He then made his will in this the lands de- manner, "I do hereby ratify and confirm my marriage articles; and I do also give to my wife all my lands in A B for life." The lands in jointure were deficient in value, and the question was, whether the lands devised were not a satisfaction of such deficiency? Lord Hardwicke observed, that the husband could not intend to devise those lands as a satisfaction for what the wife was, in strictness of law, intitled to under the articles, but that he clearly meant them as an accumulated bounty, and that it was the same as if he had repeated every iota in the articles, and had declared that every clause in them

(a) 2 Ves. sen. 409.

should be performed, and then added, I also give her such lands.

We shall now proceed to consider,

V. The widow's interest in her estate settled in jointure, and the incidents, privileges, and powers belonging to it. Her alienation with her husband, either absolutely, or as a security for his debts, and what will be a bar or forfeiture of her jointure.

1. We shall for the present presume the interest which the wife takes in her jointure to be for life only (a). And as the two interests of a dowress and such a jointress bear a near resemblance, the reader is referred to the fourth section of the last chapter, where he will find the interest of tenant in dower in her estate, and the incidents and powers belonging to it are considered.

Dower.

Jointure, and the rights and privileges belonging to it.

titled to

Like tenant in dower the jointress is intitled to Jointress inemblements, which will either pass by her will, or emblements. belong to her executor or administrator; but in the following respect they differ, viz. the jointress will not be intitled to the emblements upon the lands at her husband's death, because a jointure is not, as dower is, a continuation of the husband's estate (b).

As incident to her estate for life, the jointress may May grant grant leases for years, or a lease for her own life of leases, the settled estate. And when the jointure is of a manor, as she is domina pro tempore she may regrant regrant copyholds according to the custom (c).

copyholds,

(a) The widow's alienation to the prejudice of her issue of lands settled upon her ex provisione viri, will be considered in chapter xii. (b) Fisher v. Forbes, 9 Vin. Abr. 373, pl. 82. Also see the last chapter, sect. 4, p. 422. (c) See same chapter and section, p. 420.